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Are Instagram Images Copyrightable?

Copyright4

With the increasing popularity of photo sharing social media sites like Instagram, understanding applicable copyrights can become more complicated and confusing. One of the main questions that frequently comes up is whether posted Instagram images are copyrightable and who owns the original copyright.

In general, when you upload a photo to Instagram, you do not forfeit your copyright. However, according to the terms of service, “you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use the Content that you post on or through the Service…” 

When Your Images Might Not Be Your Own

Celebrities post selfies and photos all the time, but who owns the copyright to those? If they are taking a selfie and posting the image, they hold the copyright. But, watch out if you post a photo taken by another photographer. Celebrities like Kim Kardashian and P. Diddy are all too familiar with what happens when you post photos to Instagram you don’t have the rights to. Professional photographers and paparazzi take countless photos at events and in public, selling the photos – and rights — to certain publications. Celebrities often assume that because they are the subject matter of the photo, they can use the photos however they see fit, and post them to their own social media channels without attribution or payment. What’s worse is when they intentionally crop out or cover the photographer’s watermark.

Is It ok to Share Instagram Photos?

Instagram is seen not only as a platform for posting beautiful and interesting photos, but a place where most people want to share those images as well. Sharing images is the area many people run into problems, especially when you don’t give attribution to the original photographer. Because Instagram doesn’t offer a native method of sharing, users are either reposting, or regramming, through the use of 3rd party apps, or taking a screenshot of the original photo.

Some large, curated accounts include specific hashtags for other users to use, which they assume your use of is your consent to your photo being shared in their feed. But, what about when you run across your photos being used all over Instagram, and in some cases, repurposed and used outside of Instagram? You may have a valid cause of action for a copyright infringement case.

Fair Use and the Richard Prince Case

One of the biggest cases and public uproars surrounding Instagram and copyright law is the ongoing Richard Prince case out of New York, and his claims of fair use. Prince took Instagram photos from other users and made them into giant prints, fetching as much as $100,000 per photo in some cases. His legal defense was that his work was transformative and therefore legal. While Prince has emerged unscathed in the past, he may not get so lucky this time around. US District Court Judge Sidney H. Stein recently ruled that the case filed by photographer Donald Graham against Prince wouldn’t be dismissed as, “the primary image in both works is the photograph itself. Prince has not materially altered the composition, presentation, scale, color palette and media originally used by Graham.”

Under the fair use doctrine, users may claim they have the right to use the material without obtaining permission. Some scenarios where this may apply include:

  • Research
  • Parody or Satire
  • News Reporting
  • Review

What to do if You Think You have an Instagram Copyright Infringement Case

If you feel someone is using your copyrighted work without permission, you should start by filling out Instagram’s take down form. Having evidence of this request is important even if Instagram fails to remove the photo in question. It’s important to follow up with a qualified Florida attorney to determine whether you have a copyright infringement case. Please contact McCabe Rabin, P.A., at 561-659-7878 or 877-915-4040 for a consultation.

Resources:

people.com/celebrity/khloe-kardashian-sued-by-paparazzi-agency-copyright-infringement-instagram-photo/

petapixel.com/2017/07/27/photographers-copyright-suit-richard-princes-instagram-art-go-ahead/

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